First Sexually Violated, then Harassed by Law Keepers

Amit Kumar Mishra is a law graduate and human rights activist from Lucknow, Uttar Pradesh. His work has focused on labour rights, particularly on the unionisation and mobilisation of construction workers, and the implementation of welfare schemes for labourers. Amit has also worked to stop police torture of workers in cases of protests and arrests, and to stop child labour. Lately, he has also been working on gender sensitisation through videos on instances of sexual violence.

Rape survivors are often further violated by upholders of the law, who are either unaware of amendments in law or aren’t sensitive enough to support survivors.

In the editorial column of Times of India’s August 3, 2018 edition, politician Shazia Ilmi wrote: “While the ‘Nirbhaya’ and ‘Kathua’ incidents shock the collective conscience of our nation – as they should – it is those that happen within the dubious sanctity of our cultural mores that elude our conscience.” It has almost become common parlance to begin a story on rape with the 2012 Delhi gang rape, and now Kathua, and this article is no exception. Could it be because people have become immune to the horror of rape unless something as brutal as a Jyoti Singh happens?

After the aforementioned incident, which took place in 2012, there was an overhaul in laws relating to sexual violence. The Criminal Amendment Act 2013 was passed, and the Supreme Court banned the two-finger test to ascertain rape in order to protect the survivor from further harassment and violation of dignity. The test was banned because not only does it violate a woman’s right to privacy, but also because it is unscientific. It relies on examining the laxity of the vaginal muscles to determine whether the survivor is habituated to sexual intercourse, and thus to ascertain rape. However, a survivor’s sexual history should not even enter the realm of rape examination because it is the lack of consent that is at the core of sexual violence.

Despite this ban, numerous cases have been found where rape survivors have been subjected to the two-finger test. Community Correspondent Amit Kumar Mishra found one such case in Lucknow, Uttar Pradesh, where, along with the two-finger test, many other laws and protocols relating to the protection of a minor were transgressed.

Seema (name changed), 16, was raped. As a minor, she is protected under The Protection of Children from Sexual Offences (POCSO) Act, 2012. Firstly, she was kept in police custody for 12 days and forced to do house chores at the Inspector’s house, instead of being protected and supported at a shelter. Then, a two-finger test was conducted on her to determine rape, and according to Seema, she was forced to comply with the threat of a slap. She recalls the doctor telling her to “to lie down quietly otherwise she’d slap me.”

On paper, India has favourable and sometimes even more progressive laws for women than so-called developed countries, but their implementation is where all is lost in vain. Jan Sahas, a social development society, studied the records of 200 group-rape trials and found that the two-finger test was used to determine rape or otherwise in 80 percent of them. In fact, Amit conducted a micro survey in Lucknow, where he spoke to 10 rape survivors, including five minors. He found that all of them had the two-finger test conducted on them. His investigation led him two doctors at three different hospitals, where, off the record, they told him that they conduct the two-finger test to determine rape. It is this transgression of the law – either consciously or unconsciously – at the grassroots level that needs to irritate our collective conscience for far-reaching change to take place.

Lack of education and awareness on the nuances of sexual violence among upholders of the law, which includes doctors and police officers, often hinder the survivor’s path to justice. The implications of this barrier are far reaching – not only can this lack of knowledge and sensitivity stop survivors from reporting, but when they do decide to report, upholders of the law can leave them further traumatised and disempowered. Education and sensitisation need to be at the core of dealing with rape crisis in India and the world – awareness needs to permeate every strata of society, and patriarchy dismantled, to protect women from violence because after all, it is the people who make society and run institutions.